Assemblyman Joseph Lentol. Photo/Hans Pennink/AP

New York state's laws on sealing past criminal convictions could be changed in the coming year by members of the state Legislature, who heard testimony from prosecutors, defenders and advocates in support of expanding those opportunities, though in different ways.

While advocates said New York should enact laws to automatically seal criminal records without court approval, prosecutors said the state should loosen requirements for sealing eligibility. 

But there was at least one area on which both sides agreed: few individuals eligible to have their past criminal records sealed in New York take advantage of the state's current procedure for doing so. Some have estimated that fewer than 1% of those eligible take advantage of the law. 

Assemblyman Joseph Lentol, D-Brooklyn, who chairs the codes committee, agreed with that observation at the start of Tuesday's hearing, saying that members of the state Legislature should consider ways to expand access. 

The hearing was held in New York City to focus on the state's current laws on sealing past convictions, as well as the current statute for providing Youthful Offender status, which essentially allows teenagers accused of a crime to have their record sealed automatically. 

"The sealing provisions … have been underutilized," Lentol said. "The existing statute for sealing and Youthful Offender laws are vital for people who've had contact with the criminal justice system to rebuild their lives in a productive manner."

New York's standard law for sealing past criminal records is limited to individuals who have no more than two convictions, only one of which can be a felony. Individuals have to wait 10 years since their sentencing or release from incarceration to be eligible. 

Individuals who seek to have their past criminal record sealed have to do so in the court where they were convicted, regardless of whether it's on the other side of the state. They have to make a motion with the court to have their request considered.

Some convictions are not eligible to be sealed. Those included class A felonies—the highest level—and other crimes, like violent felonies and sex offenses. 

Brooklyn District Attorney Eric Gonzalez and Albany County District Attorney David Soares both testified in favor of amending the state's current laws on sealing criminal records to provide eligibility for more individuals. Soares said the current law is too restrictive.

"I am hopeful that in revisiting the issue, we can do more to address the rigidity and other aspects of the sealing law," Soares said.

He asked lawmakers to consider legislation that would allow more discretion for prosecutors and judges to support, and approve, the sealing of criminal records for individuals with more than two convictions. 

Soares said that, in Albany County, they've created a workaround. Rather than shutting out individuals with three convictions from having their records sealed, they've moved the court to toss the third case. With just two convictions left, that person is then eligible for sealing.

That doesn't always work, Soares said. Some judges have been hesitant to go along with the method. The Legislature could cure that reluctance by expanding eligibility, he said. 

"Judges are sometimes understandably reluctant to acquiesce to that process," Soares said. "The Legislature would be wise to consider allowing prosecutors and judges to consent to sealing more than two convictions—discretion I know would be exercised."

Gonzalez said he would also support more discretion to allow those with more than two convictions to have their records sealed, particularly if multiple cases were the result of a crisis in someone's life or were linked to someone's addiction to drugs. 

He predicted that the low turnout among individuals eligible to have their records sealed has been the result of the state's "overly restrictive" law and a lack of public awareness. 

"I believe the statute's overly restrictive eligibility requirements are resulting in a number of otherwise worthy applicants being denied relief," Gonzalez said.

There have been cases, for example, where his office has had to side against sealing a defendant's record because, years ago, they were convicted of a violent felony. He recommended that prosecutors have more discretion in those cases.

He said, specifically, that the Legislature should amend the current law to allow individuals convicted of a violent felony to have their record sealed if they committed the crime when they were young enough to be labeled a Youthful Offender, but were denied that status. 

"Although we believe that a just result would be for those individuals to have their records sealed, we've had to oppose these applications and have them denied because the statute does not allow for the sealing of violent felony offenses," Gonzalez said.

Gonzalez also said he's seen many cases where an individual is trying to have a past gun-related conviction sealed, but were denied because the charge was a violent felony. 

He said he would support allowing more discretion for prosecutors to decide when those individuals should have their criminal records sealed, and when they shouldn't. The final decision would be up to the court to grant or deny.

Gonzalez noted that his recommendations would not allow those convictions to be automatically sealed and that this office would oppose having records sealed that could be seen as relevant to public safety.

"My office has opposed and will continue to oppose the sealing of records where we believe that public safety requires a record to remain unsealed," Gonzalez said.

Advocates and defense attorneys, meanwhile, testified in favor of changing the law to allow the automatic sealing, or expungement, of criminal records, rather than through a motion with the court. That would take the onus off past offenders, they said.

Sunny Jo, a staff attorney with the Legal Aid Society, said the state could create a computer-based system that would track past convictions, mark who's eligible to have their records sealed, and then have it done automatically. 

"An automatic computer-driven clearance system would take the burden away from people with convictions to navigate this complicated, frustrating, and, for some, cost-prohibitive process," Jo said.

She agreed with Gonzalez and Soares that the state's current eligibility requirements for the sealing of criminal records are too restrictive and said it should be loosened. Her proposal would also reduce the waiting period for sealing from 10 years to just three years for felonies and one year for misdemeanors and violations. 

That same proposal was supported by Avery Bizzell, an organizer with the Community Service Society of New York, a research and advocacy group.

Bizzell, along with Kate Wagner-Goldstein from the Legal Action Center, testified that lawmakers should create an automated system to increase the number of individuals whose records would be sealed under the law and to scrap the current application process.

"While New York City applicants are fortunate enough to have advocates to assist on sealing motions, that's not necessarily the case in other areas of the state," Bizzell said.

The state Legislature is set to return to Albany for the year in January, after which they could consider amending the state's current laws on sealing criminal records.

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